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File for a Motion to Abate Pending Criminal Appellate Proceedings Upon the Death of a Client

A. The Importance of Abatement When a Client Dies & Obtaining Documentation

An appellant’s death during the pendency of an appeal permanently abates the appellate proceedings. Accordingly, if while the appeal is pending, appellate counsel receives information that the client has died, counsel should (1) confirm that the client is, in fact, deceased, and, if such is the case, (2) file an Abatement Motion in the Court of Appeal.

Depending on who alerted counsel to the client’s death, counsel may initially wish to confirm the death with the client’s family and/or the California Department of Corrections. Ultimately, however, counsel will need to obtain either a certified copy of the death certificate or a certificate from the county coroner’s office to attach as an exhibit to the motion to abate.

Effective July 1, 2003, California Health and Safety Code section 103526 permits only specific individuals to receive an authorized certified copy of a death record. Under subdivision (c)(5), legal representatives are authorized individuals. (Health & Saf. Code, § 103526, subd. (c)(5).)

Call the coroner’s office to ask whether they can accept a copy of your appointment order in order to provide a certificate of death. Or, to purchase a certified copy of the death certificate, obtain an application from the clerk/recorder’s office in the county in which the client died. Some counties have the application form available on their website. Complete the application, which includes a sworn statement signed under penalty of perjury that the requester is an authorized person. If applying in person, be prepared to show identification, such as a State Bar card and an appointment order. If applying by mail, the application must be notarized. (Health & Saf. Code, §§ 103525 & 103526, subd. (a).) (Note: every county is different. Search online or call to find out what identification may be required from counsel.)

During the application process, counsel may need to request an extension of time in the Court of Appeal and inform the court of the probable death of the client. Upon receiving the certified copy, counsel should attach it as an exhibit and file the motion to abate.

As relief, the motion should request that the Court of Appeal (1) dismiss the appeal, (2) vacate the judgment of conviction, and (3) remand the case to the trial court with directions to dismiss the information or indictment. (See People v. Dail (1943) 22 Cal.2d 642, 659; People v. de St. Maurice (1913) 166 Cal. 201; see sample Abatement Motion.) This remedy will remove the conviction, which was never final, and the attendant stigma from the client’s record. Thus, abatement may affect the inheritance rights of the heirs.

Finally, time spent drafting the motion can be claimed as a necessary part of appointed counsel’s representation under “other motions” on line 5 of the JCC appointed counsel claim form. Costs incurred in obtaining the certified copy of the death certificate from the county recorder or a certificate from the corner’s office may also be claimed as a necessary expense on line 9, with an explanation, and are fully reimbursable.

B. Sample Motion to Abate

A sample Abatement Motion can be found in the CCAP online motions book.